Can you be fired for wearing an orange t-shirt? Turns out you can in Florida.
In a recent and ongoing case in the United States, 14 employees at a Florida law firm were fired en masse for wearing orange t-shirts. The background is that these employees began wearing orange shirts on pay-day Fridays, after which they would all go out for a drink together. While there was no dress code prohibiting the wearing of orange t-shirts, the employer believed the employees were staging some kind of workplace protest and fired them for that reason.
This somewhat bizarre case raises an important point about the rights of employers to fire employees and on what basis. In Florida, state law allows an employer to fire an employee “at will,” meaning there can be any reason or no reason at all, so long as it is legal. The employer is not responsible for providing notice, pay in lieu of notice, or severance pay.
In this case, the employer was mistaken about the reason the employees were wearing orange t-shirts. By relying on the notion that they were protesting, the employer brought the mass termination into the realm of U.S. labour law, which protects unionized and non-unionized employees alike from being fired for “protected, concerted activity.”
In Canada, the law is similar in some respects but different in others. Non-unionized employees in Ontario may be terminated for cause or without cause. Unlike Florida, if an Ontario worker is fired without cause, the employer must provide at a minimum notice or pay in lieu of notice and severance in accordance with the Employment Standards Act (ESA). In addition, beyond the ESA, an employer is required to provide reasonable notice under common law.
Non-unionized employees who work in the federal sector, such as in banking, are governed by the Canada Labour Code, and non-management employees who are unjustly dismissed can make a complaint seeking damages or even reinstatement.
Unlike the U.S., non-unionized workers in Ontario do not benefit from protection under the notion of “protected, concerted activity.” Only unionized workers have a similar type of protection under the Ontario Labour Relations Act.
Finally, like Florida’s “at-will” approach, a termination in Ontario can be for cause or without cause so long as it is legal. Terminating someone for a reason related to a discriminatory or protected ground, as set out in the Ontario Human Rights Code and the Canadian Human Rights Act, may render a termination illegal.